The defendant makes essentially two arguments in support of its motion to dismiss for lack of jurisdiction. The first is based on the portion of section 11 (c) (2) of the Act which provides that upon receipt of a complaint from an employee alleging a violation of the Act, "the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person." 29 U.S.C. § 660 (c) (2). The defendant maintains that because the complaint does not aver that an investigation was conducted by the Secretary prior to the institution of this suit, the suit must be dismissed for want of jurisdiction. Defendant's argument is that an allegation of an investigation is a jurisdictional prerequisite to suit under the Act. Defendant has cited no authority in support of its position. Plaintiff maintains that, even though the complaint does not allege in so many words that an investigation was conducted by the Secretary, such an investigation was in fact conducted prior to the bringing of this suit. Plaintiff also argues that if a prior investigation was not conducted, defendant was not prejudiced by the absence of an investigation.

Defendant's argument in support of its motion to dismiss for failure to state a claim is similarly unpersuasive. It is that because Mr. Woodkirk's discharge occurred prior to the filing of any complaint with the Secretary, there can be no claim for relief under the Act, which establishes a cause of action against an employer who discriminates against an employee "because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by any such employee on behalf of himself or others of any right afforded by this chapter." 29 U.S.C. § 660 (c) (1). It is true that Mr. Woodkirk's discharge on July 8, 1974, preceded the filing of his complaint with the Secretary on July 31, 1974. However, that discharge followed by five days Mr. Woodkirk's complaint to Legal Services about the conditions of his employment. The latter complaint encompassed the retention by Mr. Woodkirk of counsel to represent him in rectifying what he considered to be unhealthy and unsafe working conditions. It was the first step in his exercise of his right to "safe and healthful working [conditions,]" a right which was expressly established by the Act. 29 U.S.C. § 651 (b). As such, it is clearly covered by the Act, which affords a cause of action against an employer who discriminates against an employee because "of the exercise by such employee on behalf of himself or others of any right afforded by this chapter." 29 U.S.C. § 660 (c) (1). Because the complaint alleges that Mr. Woodkirk was discharged for retaining counsel to represent him in rectifying what he considered to be unsafe and unhealthy working conditions, it states a claim upon which relief can be granted.

Moreover, Mr. Woodkirk alleged in his affidavit that he lodged his complaint with defendant and under 29 C.F.R. 1977, 9 (c) such a complaint, if made in good faith, would protect him against discharge or discrimination as a result thereof.

Plaintiff's motion to strike defendant's demand for jury trial will be granted. The demand for back pay in this case is not in the nature of a claim for damages, but rather is an integral part of the statutory equitable remedy, to be determined through the exercise of the court's discretion, and not by a jury. Cf. Johnson v. Georgia Highway Express Co., 417 F.2d 1122, 1125 (5th Cir. 1969), and Curtis v. Loether, 415 U.S. 189, 197, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974).

WILLIAM J. NEALON / United States District Judge

ORDER

Now, this 13th day of May, 1976, in accordance with memorandum this day filed, defendant's motion to dismiss is hereby denied and plaintiff's motion to strike defendant's demand for jury trial is hereby granted.

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